Judge: Serena R. Murillo, Case: 21STCV33845, Date: 2022-08-16 Tentative Ruling

Case Number: 21STCV33845    Hearing Date: August 16, 2022    Dept: 29

TENTATIVE

Defendant’s motion to dismiss is GRANTED. Defendant Vallarta Supermarkets is dismissed from Plaintiff’s complaint with prejudice. 

Legal Standard

Code of Civil Procedure section 581, subdivision (f)(2) enables a court to dismiss a complaint as to a defendant after a demurrer is sustained with leave to amend, the plaintiff fails to timely amend it, and either party moves for dismissal.  A dismissal pursuant to California Code of Civil Procedure section 581, subdivision (f)(2) is with prejudice.  (See Parsons v. Umansky (1994) 28 Cal.App.4th 867, 870 [citing Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 789, 789].) The California Supreme Court has interpreted section 581 as “...not deny[ing] a plaintiff his day in court.  It simply requires that he frame his allegations in order to state a cause of action; and if a plaintiff is unable to do so after an adequate and reasonable opportunity is afforded, he must proceed to review of such legal determination by appeal, rather than seek another trial forum in which to reassert the same claims.”  (Wells, supra, 29 Cal.3d at p. 789.) 

Discussion

Defendant asks the Court to dismiss the complaint because Plaintiff failed to timely amend the complaint after the Court sustained Defendant’s demurrer. The Court notes that Plaintiff has not filed an amended complaint after the Court sustained Defendant’s demurrer on April 19, 2022.  Over ninety days have passed and, thus, the Court finds the complaint may be dismissed pursuant to Code of Civil Procedure section 581, subdivision (f)(2). 

Conclusion

Accordingly, Defendant’s motion to dismiss is GRANTED. Defendant Vallarta Supermarkets is dismissed from Plaintiff’s complaint with prejudice. 

Defendant is ordered to give notice.